March 19, 2007

Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.

Many law professors seem to think they are under no obligation to say anything useful or to say anything well. That's my favorite Adam Liptak quote of all time -- though it still can't beat the Jacobs quote for post title. Now, there's a quote!

But the big question is do the judges read lawprof blogs?

The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.

“If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.”

To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen.

(Hi, judge!) I'll have to make a note to comment on more cases in a "quick, plain and accessible" way.

And on the theory that I've got some judge and law clerk readers, let me put in my request that they write their damned opinions in a quick, plain and accessible style. Because I'm getting pretty weary of their obfuscatory, evasive, rambling scribblings myself. Unfortunately, I don't have the option of just not reading. Their work is imposed on us. Talk about an obligation to say something useful and well!

As for those professors, how much should we worry about their disinclination to stoop to the level of quick, plain accessibility for the purpose of talking to judges? Do you really think these characters who opted out of the practice of law should have more influence over the law that affects real life? Maybe you should be glad they've cocooned themselves within an academic discussion that harms no one.

Do you feel sorry for the law review editors who work so hard on what the professors write? The editors still get their editing experience. They get their lustrous credential to put on that résumé that will land them the judicial clerkships where they will get more experience working on judicial opinions -- those lengthy, obfuscatory judicial opinions that fail to cite law review articles.

If the very persons who just spent two years working closely on law review articles don't find a way to work law review citations into the opinions they draft and edit, that says a lot about the value of what they chose to publish.

Hey, law review editors, why don't you start choosing "quick, plain and accessible" articles that judges will read and be influenced by? I think we know very well that the prestigious journals reject such things instantly. It's not what their lofty lawprofs write and respect.

It's a vicious dynamic, no?

But judges could change the whole dynamic if they started rejecting law clerk applicants whose law journals published the kind of articles they don't read. So quit complaining and use your power to change things. Or are you so beholden to the law professors whose work you don't read that you have to hire their darlings, those law students who publish the articles you don't read?

And on the theory that I've got some judge and law clerk readers, let me put in my request that they write their damned opinions in a quick, plain and accessible style. Because I'm getting pretty weary of their obfuscatory, evasive, rambling scribblings myself. Unfortunately, I don't have the option of just not reading. Their work is imposed on us. Talk about an obligation to say something useful and well!

What Freder said, and let me add, you should add peer review in some form.

You need to create an AutoAdmit for Law Reviews and their articles, complete with the anonymous logins, open for the public to read, but only letting professors, judges, and trial attorneys in on the board to comment.

If authors knew there articles were read and would be commented on by a bunch of anonymous judges speculating on their sexual habits, I bet it would go along way towards improving the articles themselves.

I have a couple disagreements on this. First, while judicial opinions are of uneven quality, they are nowhere near as bad as most legal scholarship. As a practitioner, I try very hard not to ever have to rely on law review articles, as it is far too time-consuming to sift through the pretentious jargon, silly one-upsmanship ("A Reply to Professor's __'s Response to My Theory of blah blah blah") and bad prose in search of useful material.

Second, I don't think judges select law students because they have worked as editors of journals. I think they select law students whose records reflect high achievement, one measure of which is law review membership. I very much doubt the hiring judge cares whether the applicant did a good job editing a 90 page tract on "Gender Identity Politics and Hegemony: The Oedipal Conflicts of Rule 54(b)."

Instead of resume-padding law review articles and editing, perhaps law professors ought to actually practice what they preach every once in a while. That is, maybe they ought to act like lawyers and write actual, real-life motions, memoranda in support thereof, and appellate briefs. And perhaps aspiring lawyers can assist in that endeavor. Then, maybe, their efforts will really amount to something and it will get read by judges (or at least their clerks).

In 15 years of trial and appellate practice of law, I can remember maybe only one or two law review articles that I have looked at -- and then only to use them as reference material to find other more important sources to cite.

Judges do not read law review articles because attorneys representing real clients in real situations do not read them or cite to them in their motions or briefs. Instead of complaining, academics need to file down their pointy little heads and get a real job.

It doesn't help when law review editors are not allowed to correct misstatements of fact in an article either. I found a gross misstatement of the impact of a statute in a submitted paper I was editing and was told I could not correct it even though the statement was clearly incorrect.

I read something recently - can't remember where now, but the point's worth repeating - that the problem may set in years before one becomes an editor or author of law review articles: When we impose minimum word limits on schoolkids. Instead of teaching the value of concision, we insist on teaching kids to never use one word where three will get them closer to the word limit, inculcating a habit of prolixity. Is there anything to that idea - to tackle the problem closer to the root than the branch?

Sloan:"Have a page limitation on law review articles.... say 10 pages. That way people might be willing to read some of the articles (and limit court opinions to 10 pages also.)"

That strikes me as being similar to the argument that no rock song should be longer than ten minutes. If the song can be done in ten minutes, great; if it needs to be longer, then that's okay too. See, e.g., A Change of Seasons or Echoes. When people complain that songs are "too long," what they usually mean is that the material is spread so thinly through the running time that the song's insufficiently engaging, but that's a different issue: the problem isn't that it's too long, the problem's that it isn't well-written enough to be engaging throughout.

Ditto law reviews: I'm reading something by Larry Solum right now, and it's kind of long, but it's exciting and fun and engaging. The writing drags the reader along with it. Now, of course, if you can say what's on your mind in less than ten pages, great! But some ideas just take more space to fully develop. Vanguard States, Laggard States, for example, occupies 82 pages of the University of Pennsylvania Law Review - which 72 pages do you propose to cut? ;) Or, consider The Alden Trilogy: Still Searching for a Way to Enforce Federalism, probably the best exposition of the late-90s federalism/sovereign immunity cases that I've read: 58 pages. I don't know that there's ten pages'-worth of surplussage in it, let alone that it can be reduced to ten pages.

The bottom line is that some ideas and songs demand more. Complaining about length is a red herring: the problem isn't length, it's bloat. The problem isn't 82 page articles, it's articles that have 10 pages worth of content that are inflated to occupy 82 pages.

Both CJ Jacobs and Judge Raggi have written law review articles, Jacobs are recently as 2006. Judge Raggi gave an address published in the 2004 Wisconsin Law Review and had previously written articles for Fordham LR and the Harvard CR-CL LR. Both are very able and hard working judges, and have no ax to grind here. Jacobs taught English at Queens College before attending Law School, and it's no surprise that he has no time for magazines that never "say anything useful or ... well." I can't imagine why anyone would want to bother with such stuff.

And it's not just the judges who have stopped reading law reviews. I don't know a single practicing attorney who reads an academic law review as a regular routine (practice-specific journals are a very different matter). I've heard the lament from a number of lawprof friends that some academic LR piece they labored over was never cited even once by anyone, let alone an appellate court. If no one is citing this stuff, one wonders if anyone (other than the LR editors and the author) is even bothering to read it. Obviously, if these LRs depended on the circulation or the market to sustain them, the problem here, if there is one, would correct itself. But they don't.

Ann suggests that the judges could "change the whole dynamic if they started rejecting law clerk applicants" and so should "quit complaining and use [their] power to change things." But there's no reason for the judges to care, and it's not their problem to fix. That academic law reviews today have become the home of the unread and the unreadable isn't a problem for the judges. And there are plenty of publications where one can find the "quick, plain and accessible" articles providng a nuts-and-bolts analysis of some statute or line of cases if that's what a judge is looking for (the Tax Lawyer, Business Lawyer, various ABA journals, perhaps even a lawprof blawg or two, etc.). All that law reviews reliably churn out today are student-editors who have spent two years in an intensive course in legal research and writing. Often they actually pick up useful skills along the way -- an ability to plough through a mass of briefs and other legal papers, and then generate a bench memo or draft opinion having a logical order and written in standard English that the judge can use.

It's the professors writing all of those articles that no one, even their colleagues, seem interested in reading who might want to take to heart the old adage about an unexamined life not being worth living. So, Ann, what do you think the lawprofs should do about it? Or, from the law school perspective, is it no big deal that all of this effort is poured into writing articles that have no audience?

I can't resist a bit of on-topic self-promotion. I wrote a 50-page comment published in the Wisconsin Law Review, titled "The Fit Between the Elements for an Informed Consent Cause of Action and the Scientific Evidence Linking Induced Abortion with Increased Breast Cancer Risk," available at www.proinformation.net. It was distributed to every member of the U.S. House of Representatives in 1999 by Congressman Dave Weldon, M.D. My goal throughout the writing of this article was to produce something of practical value to practitioners and judges, and indeed the article was widely read and was the inspiration for (so far) two successfully settled malpractice suits, one in Pennsylvania and the other in Oregon.

Ann, it's obvious that what you need is someone to tell you how to run your blog and how to write and how to choose what to write about and so on. You have quite a few applicants for the job on this thread it seems.

I suggest we all go to the blogs of the applicants and check out how great they really are, in a compararive sense. Then maybe you could have a vote on which of those blogs we'd prefer you to model your blog and you could choose that blogmaster to be your director or whatever?

Althouse, I like your idea that judges should stop hiring solely from the law review pool, but mainly because my experience on law review taught me almost nothing about writing. I'm a pro with the Bluebook, though, thanks to my law review days.

I don't know about other schools, but my school required every student to write a law review-submissible paper or note, not just the students on law review; and some of the non-law review students did a better job, in part because they weren't wasting every spare minute checking the citations of bloated articles sent in by professors from other schools. Why couldn't judges actually look at which applicants have been published, and then actually read the publications to judge the relative merit of writing skill? Sure, it would take some time, but it would also get some interesting clerks who would have been passed over otherwise. After all, aren't we all supposed to be about diversity?

"I don't know about other schools, but my school required every student to write a law review-submissible paper or note, not just the students on law review;"

Excellent idea. Other graduate-level degrees require a thesis, why not law school? And while we're at it, let's cut formal coursework (employing the Socratic method) down to one year, and keep the professors busy assisting students with their thesis-writing. Add more nuts and bolts learning along the lines of what paralegals get, and apprenticeship work to get fully credentialed (like back in the days of Abe Lincoln), and we'd be getting close to the perfect law school.

Unlike the commentator who suggested law review did nothing for his or her knowledge of the law, I found the experience of cite-checking immensely valuable: my prior academic training was as an intellectual historian and I was astounded to discover how many of the footnotes in the articles I was asked to check were wrong. Some were just made up -- this was before the Michael Bellisles made it clear this was the new thing -- and quite a number cited cases that stood for something other than the author claimed they did. From a scholarly point of view, it was fascinating to trace the provenance of the misquotation of cases: to track down which of the sources the author used had the mistake the author was making -- which showed that many authors relied on a few other law review articles for the meaning of cases, rather than actually going out and reading the cases themselves (as several authors admitted when confronted). When I was an editor on the flagship review at a top 10 law school, I was truly appalled at the low standard of legal scholarship and the narrowness of the learning of legal authors, their utter unfamiliarity with significant historical or philosophical scholarship essential to understanding the issues they were dealing with. Bah. No wonder no one reads law reviews any more.

I've heard the lament from a number of lawprof friends that some academic LR piece they labored over was never cited even once by anyone, let alone an appellate court.

They fail to understand that it's not about them or their labor. Who cares how hard they worked?

The most important concept in practical writing is not "I." It's "you." Shorter: Audience, not author.

But there's no reason for the judges to care, and it's not their problem to fix. That academic law reviews today have become the home of the unread and the unreadable isn't a problem for the judges.

It's not the job of the audience to fix the performance. It's the job of the performers to reach and engage the audience. Period.

The majority of writing in the world is workaday. By that I mean the purpose is to address particular needs of a particular audience and specifically NOT to serve the self-expression and ego needs of the writer.

In our "express yourself" culture, this is a tough reality for people to grasp.

One other ingredient of the perfect law school I forgot to mention: As much as I detested the bar exam, it is important for law students to learn more of the actual law than they currently do. The more intellectually-stimulating courses I took in law school spent a lot of time dwelling on the areas where the law is grey, and the professors understandably took delight in highlighting these ambiguities (conveyeing sometimes a somewhat nihilistic view of the law). However, this method and focus seemed to result in a neglect of the far-wider (and more relevant to everyday practice) range where the law is relatively certain. Again, it's valuable to encounter and engage with these areas of uncertainty and ambiguity, but this can be done with one rather than three years of Socratic-method lectures. Just as I think high school curriculums should require learning basic car maintenance and mechanics, home maintenance and personal financial management, etc., seems like every law student upon graduation should know pretty thoroughly the black letter law that is most likely to affect himself and his family and friends.

John Kindley said: Just as I think high school curriculums (sic) should require learning basic car maintenance and mechanics, home maintenance and personal financial management, etc., seems like every law student upon graduation should know pretty thoroughly the black letter law that is most likely to affect himself and his family and friends.

True enough, although it's useful for law students to realize that today's black letter law originated in a case or statute somewhere. I recall one of our first assignments in legal research and writing involved a problem that was supposed to demonstrate that somethings are black letter law, and you can't really find a case that really settles the law. Of course, if you know anything about research, you can probably find the case with a little effort: as with the our little issue, where the leading case was right there in a yearbook of Edward III waiting to be found....

What is it that lawprofs do that makes them so busy that they can't do some peer review? Every other academic field requires it as a matter of course.

If law were a hard science, where there was one and only one right answer, then peer review might make sense, but law is not hard science. Our legal tradition long ago abandoned the idea that the law, in order to be law, had to be consistent with reason and truth.

One thing that has not been mentioned is that, thanks to the continued need to publish, there are simply too many articles published in too many law reviews for them all to find an audience or for each article to make any kind of profound impact upon the state of knowledge. We all need to publish in order to remain as faculty, and so we're not going to be willing to set a bar which prevents publication.

Having said that, there remains a place for the extended law review article, even the most theoretical and "useless" in the sense of not being directly applicable to formulating legal arguments in cases or writing opinions to resolve them. We're writing these for each other, and every so often there will be that one piece of writing that just works, by giving an insight that had not previously been considered. This, that at least in my case works to strengthen my teaching, by clearing up my own confusions. So, the "useless" article may well lead to quick, plain and accessible teaching.